Close on the heels of Léon Dijkman’s new book The Proportionality Test in European Patent Law Patent Injunctions Before EU Courts and the UPC (Hart Publishing 2023), which I noted last week (here), is a new paper by Benjamin Raue and Franz Hofmann titled Injunctions and Damages for the Infringement of Patents under the UPCA - An Analysis in the Light of the Principle of Proportionality. Here is a link, and here is the abstract:
The infringement of a patent regularly results in a claim for injunctive relief and damages. However, depending on the facts of an individual case an injunction might be disproportionate. An injunction might cause hardship for third parties, be contrary to the public interest or, first and foremost, disproportionately disadvantageous for the infringer (e.g. “hold-up”). In our study, we discuss the impact of proportionality considerations on permanent injunctions and damages under the UPCA, with a special focus on non-practicing patent assertion entities (PAEs) and complex products. We will not discuss interim injunctions or the issue of SEPs.
The authors argue for a robust use of the proportionality defense to deny or stay injunctive relief in cases posing a substantial risk of patent holdup (particularly PAE and complex products cases), and to award ongoing royalties equal to a reasonable royalty.
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